Galasso v George

CASES CITED: Osborne v Hook [2008] NSWLEC 1231

APPLICANT Mr E. Galasso, litigant in person LEGAL REPRESENTATIVES:

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

20895 of 2008 Galasso, Ermino and Alina v George, Anthony and Rose

1 Mr and Mrs Galasso, the owners of 72 Redmyre Road, Strathfield, have made an application under the Trees (Disputes Between Neighbours) Act 2006. They seek orders for removal of the tree(s) that exist at the south-western edge of their boundary fence on the property of Anthony and Rose George at 74 Redmyre Road. Mr Galasso claims the trees have caused cracking and displacement of the boundary fence that is located on his land.

2 The Tree Dispute Application form filed on 8 September 2008 sought compensation due to property damage and removal of the palm tree.

3 The claim for damage by the applicant for compensation was supported by a single estimate for repair works to the brick boundary fence to repair the horizontal cracking and lateral displacement of the wall. The quote for the works came to $8,114.

4 At the site inspection of the boundary on 27th January 2009 only Mr Galasso was present. However, we were able to arrange access to view the boundary fence on Mr George's property through his son, who was present at 74 Redmyre Street.

5 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to any person? 6 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 7 In addition, in determining an application, the Court is required to consider the matters in s 12 of the Act. The trees and the wall 8 Two palm trees that appear to be an Alexander and Cabbage tree palm are growing on the property of Mr and Mrs George. The trees appear to be in a healthy condition. Their canopies are largely within the George property but some of the fronds overhang into the Galasso's property. The root mat of one of the trees was pressing on the lower part of boundary wall.

9 Mr Galasso gave evidence that the portion of his boundary fence that is affected by the trees was built approximately 22 or 23 years ago. In oral evidence Mr Galasso informed the court that the wall was entirely on his property some 180 mm inside the boundary line of the properties. 10 Mr Galasso is a licenced builder and managed the construction of the boundary wall fence. The construction of the wall is largely a single skin of bricks, with a double skin at the top, where there exist planter boxes and a plastic pipe carrying electricity cables set with a mortar filled recess. The affected portion of the wall and its pier is approximately 3 m wide and 2.4 m in height.

11 On construction of the wall, Mr Galasso informed the court that there was approximately a 450 mm difference between the surface of his property and that of his neighbour. The bricks were laid on concrete and the height difference between his property and that of his neighbours was on completion of the wall backfilled with the soil that was removed during construction. 12 Mr Galasso gave oral evidence that the trees were not there at the time of the construction of the wall. Findings 13 Our site inspection revealed that the trees have contributed to damage to the wall and are causing damage to the property. Consequently, the first two tests in s 10 (2) of the Act have been met and we are able to make Orders regarding the matter.

14 Where there is no reason that the owner of the tree should be aware that the tree is causing damage, it is the usual practice of the Court to award compensation only for that portion of the damage that occurred after the owner of the tree is notified of the damage (Osborne v Hook [2008] NSWLEC 1231).

15 We received evidence from Mr Galasso that Mr and Mrs George were informed approximately 4 years ago that there was a problem with the wall. Mrs George came over to inspect the problem at that time and then again 3 years ago. The court was told that Mr George inspected the wall approximately 6 months ago and some 1.5 weeks later Mr George dug a trench on his side of the wall to show Mr Galasso that the roots from the tree were not a problem. We were informed and shown of the location of the inspection trench. This was to the south of the pier that was damaged and away from the root matt that was touching the boundary wall fence in the area of the damaged wall. 16 The damage to wall resulting from the pressure of the tree roots is as follows: + The wall has bulged toward its base. + Toward the base of the wall there is some cracking along the mortar of the bricks and displacement toward Mr Galasso's property. + The pier at the northern edge of the affected panel (the third panel of the boundary wall fence to the south of 72 Redmyre Street) is also bowed. + The wall and their pier have undergone some minor vertical displacement. 17 However, we note that the base of the wall acts, in effect, as a retaining wall for the higher ground present in the George's property. We find that a single skin wall is not of adequate strength to act as a substantive retaining wall. We note that Mr Galasso as a licensed builder should have been aware that a retaining wall was required to support the 400 mm higher ground on Mr George's property, that he said existed at the time he built the wall.

18 We also note that other parts of Mr Galasso's wall, away from the area of damage referred to in this claim, show signs of aging and wear and tear (cracked bricks and the like).

Orders for specific actions 19 In accordance with s 9 (1) of the Act, the Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree(s) the subject of the application concerned.

20 We will order that the tree root mat be cleared from the boundary wall fence to the actual boundary line of the properties to the base of the wall. Mr Galasso informed us that the distance from the boundary wall fence to the property line is approximately 180 mm. We anticipate that this action will not cause destabilisation or permanent damage to the trees, which may be retained.

21 In addition, we will order that the wall be repaired so that the cracked and displaced bricks and the pier are rendered good. However, since only half of this section of wall is noticeably damaged, we will limit the order for repairs to the wall to its lower half and the pier.

22 In repairing the lower half of the wall we will order that the wall, up to the level of the soil in the George's property be built as a suitable retaining wall, which along with the clearing of the root matt will reduce the likelihood of future damage. We note that there is sufficient room on the western side (still within Mr Galasso's property) for a retaining wall to be built. 23 We will order that the works be completed by 30 April under the instruction of and full payment by Mr Galasso. On completion, Mr and Mrs George are to pay their proportion of the costs within 30 days of being provided with a copy of the receipt for full payment of the completed works.

Compensation 24 Mr and Mrs Galasso claim compensation for damage to the wall from the trees. They provide a single estimate for the works for $8,114. However, we are mindful of the original construction of the wall and that it was unsuitable as a retaining structure. We are also mindful of the fact that only about half the wall is affected along with part of the pier, and that the wall is more than 20 years old. Consequently, we do not find it reasonable to request Mr and Mrs George to pay for all of the damage.

25 On the basis of sharing of costs and that the quote provided by Mr Galasso was for the whole panel of the wall, we find that Mr and Mrs George's contribution should be capped to $2000 or one quarter of the cheapest of 3 quotes but capped to $2000, which ever is the lower amount.

26 This calculation of Mr and Mrs George's contribution is based upon the following: half of the wall needs to be repaired, and Mr Galasso agreed at the hearing that such repair was possible, and hence the quote of $8,114 should be halved. We also determined that it would be reasonable to halve this amount for Mr and Mrs George's contribution to the repair of the wall as it was not built adequately to retain the higher ground and because the wall is more than 20 year sold. Thus, the final cost is to be one quarter of the original estimate of $8,114 amounting to $2029.50. Since there was only a single quotation for the repairs, we have rounded that figure to $2000 as the maximum that Mr George will be required to pay. Conclusion 27 We find that the trees located on 74 Redmyre Road, Strathfield have caused damage to the wall and that the damage is likely to continue and to render the wall unsafe unless repair works are undertaken.

28 We find that the cost of ordered works should be shared between the parties, but that financial burden to Mr and Mrs George should capped at $2000 or, a quarter of the cheapest of 3 quotes, whichever is less. Orders 29 The application is upheld in part, and orders will be made as follows: a. Mr and Mrs George shall pay compensation for a proportion of the costs associated with repair to the lower half of the wall and the pier and also for clearing the roots from the boundary fence wall. This amount is to be one quarter of the cheapest of 3 quotes, capped to $2000.

b. Mr and Mrs Galasso are to seek three further quotes for the repair of half the wall and the northern pier by 27th February 2009. Copies of the quotes are to be provided to Mr and Mrs George by the same date. The repair works are to be completed by April 30th 2009. Reimbursement of the costs to the amount or proportions described in 29 (a) are to be made to Mr and Mrs Galasso within 30 days of Mr and Mrs George being provided with a copy of the receipt for full payment of the completed works.

c. The repair to the wall is to include a suitable retaining wall to be built at its base to the height of the land on the George's property (~400 mm).

d. In preparation of the repair, the root matt in the area of the damaged wall should be cleared to the base of the current wall and to a distance of approximately 180 mm from the current edge of the western boundary of the wall.

e. The building work in 29(a) shall be carried out by a qualified building contractor with suitable insurances.

Dr Mark Taylor Commissioner of the Court

Peter Thyer Acting Commissioner of the Court

The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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